Gov­er­nors are not above the law

Judges have de­clared them­selves im­mune from pros­e­cu­tion by weav­ing in their own priv­i­leges as part of the ba­sic struc­ture doc­trine. By re­fus­ing to grant any re­lief at all to the Congress at such an un­earthly hour ap­peared that the bench erred on the side

The Free Press Journal - - WORLD -

The three-judge bench com­pris­ing Jus­tices Ar­jan Sikri, Sharad Bobde and Ar­jun Bhushan’s re­fusal to stay the swear­ing in of BJP chief min­is­ter Y S Ye­du­rappa in the wee hours of Thurs­day has in­di­rectly sparked a cri­sis in the coun­try with the Congress stak­ing its claim to form the govern­ments in Goa, Mi­zo­ram and Megha­laya where there is no doubt that the Congress was the sin­gle largest party. Re­bel­lion has bro­ken out in other states.

Ram Jeth­malani, the 94-year-old lawyer came out from re­tire­ment to seek in­ter­ven­tion in the Congress’ pe­ti­tion chal­leng­ing Kar­nataka gov­er­nor Va­jub­hai Vala’s call­ing upon the BJP to form the govern­ment although it lacks a ma­jor­ity. “His ac­tion is a gross abuse of his gu­ber­na­to­rial of­fice,” Jeth­malani has al­leged in his pe­ti­tion.

The se­nior lawyer ap­pears cor­rect be­cause gov­er­nors, like judges, must be apo­lit­i­cal as they swear to up­hold the Con­sti­tu­tion and not their nar­row po­lit­i­cal in­ter­ests. But re­alpoli­tik and ide­al­ism are ap­po­site be­cause it was Naren­dra Modi who gifted Va­jub­hai Vala with the Kar­nataka gu­ber­na­to­rial post as a de­layed quid pro quo af­ter the lat­ter va­cated his Gu­jarat assem­bly seat in 2001 to en­able Modi to con­test his maiden elec­tion.

Vala was an RSS pracharak and de­spite be­ing sworn in as a gov­er­nor, will re­main loyal to Modi which Jeth­malani al­leges grossly abuses his gu­ber­na­to­rial oath. Jeth­malani de­clared he was nei­ther for nor against any po­lit­i­cal party but was left with no choice but to in­ter­vene when all demo­cratic norms were abused..

A three-judge bench com­pris­ing Chief Justice of in­dia (CJI) Di­pak Misra, A M Khan­wilkar and D Y Chan­drachud told Jeth­malani on Thurs­day to men­tion his pe­ti­tion be­fore the spe­cial bench com­pris­ing Jus­tices Ar­jan Sikri, Sharad Bobde and Ashok Bhushan which had ear­lier re­fused re­lief to Congress’ Ab­hishek Manu Singhvi in a drama which went on in the Supreme Court from 1.45 am till 4.30 am.

The moot ques­tion is when Justice Sharad Bobde asked Singhvi, “how can we in­junct the gov­er­nor? The trend of the Supreme Court is not to in­ter­fere.” But Singhvi ve­he­mently ar­gued that the gov­er­nor’s ac­tion was sub­ject to ju­di­cial re­view be­cause if Justice K.M. Joseph could strike down Pres­i­dent’s rule in Ut­tark­hand, there was no rea­son why the Kar­nataka gov­er­nor’s ac­tion could not be re­viewed.

He was right be­cause no­body is above the law although the Pres­i­dent, gov­er­nors of all states and the judges of the 24 high courts and the Supreme Court are im­mune from crim­i­nal pros­e­cu­tion while they oc­cupy of­fice. Judges have de­clared them­selves im­mune from pros­e­cu­tion by weav­ing in their own priv­i­leges as part of the ba­sic struc­ture doc­trine. By re­fus­ing to grant any re­lief at all to the Congress at such an un­earthly hour ap­peared that the bench erred on the side of cau­tion.

Gov­er­nors, like judges, can­not be above the law. To il­lus­trate, in the Vya­pam mur­ders, the gov­er­nor of Mad­hya Pradesh, Ram Naresh Ya­dav, was an ac­cused with his son, Shailesh. The gov­er­nor’s son was ac­cused of ac­cept­ing a bribe of Rs 3 lakhs in the Raj Bha­van premises. Ya­dav was not dis­charg­ing gu­ber­na­to­rial du­ties when im­pli­cated in the Vya­pam scam.

The moot ques­tion is what did the BJP de­clare in their two let­ters to Gov­er­nor Va­jub­hai Vala dated May 15 and 16? If, in one of the let­ters, the BJP de­clared that they had the sup­port of 104 MLAs, then Gov­er­nor Va­jub­hai Vala has abused his Con­sti­tu­tional post.

And by re­fus­ing to in­junct the patently il­le­gal ac­tion of the Kar­nataka gov­er­nor which al­lows MLAs to be bought and sold within the 15-day time given to prove its ma­jor­ity, the apex court in effect, is declar­ing that gov­er­nors are above justice and the law.

The writer holds a PhD in Me­dia Law. He is a jour­nal­ist-cum-lawyer of the Bom­bay High Court.

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